Myers v. Smith

Bowie, O. J., delivered the opinion of this Court. The exceptions brought up on this appeal are taken to the refusal of the Court below to permit the evidence offered by the appellant (the plaintiff below), and other evidence elicited by the appellee, on cross-examination of the appellant as a witness, to be considered by the jury. . The first exception referring to the pleadings, it is proper to state them briefly. The amended nar of the plaintiff contained three counts; the first, on a promissory note, described therein as joint and several, and dated the 31st of May, 1864, then over due, for four hundred and twenty dollars, payable to the plaintiff ninety days after date.

The second, for money payable by the defendants to the ⁴⁷ plaintiff, for goods bargained and sold; the third, for money found to be due from the defendants to the plaintiff on an account stated between them. The defendants, as to the first, second and third counts, pleaded “ they were never indebted as alleged and for a second plea to the first count, the defendants say, “ they never promised as alleged on which several pleas issues were joined. The appellant, to maintain the issues on his part, having first proved its execution, offered the following paper: “ $420.00. Frederick County, May 31st, 1864. ■ “Ninety days after date, we, or either of us, promise to pay to Charles E. Myers, four hundred and twenty dollars, being the balance due on the crop of wheat purchased by us from said Myers, with this express understanding and agreement, that should loss or difficulties occur from any cause whatever, by any person or persons claiming an interest or portion of the share of said Myer’s interest in the wheat crop aforesaid, on the farm of Col.

Jacob M. Kunkel, on which Myers lately resided, then and in that event, such loss or deduction to be taken from the amount to be paid by this note. “John Smith, of M. “John W. B amuck.” To which the appellees objected as inadmissible under the pleadings in the cause, which objection the Court sustained and the appellant excepted, which constitutes the ground of the first exception. If this instrument had been offered by the appellant to maintain the issue joined on the first count in the nar only, which declares on a promissory note, the objection to its admissibility would have been well taken, for the paper does not amount to a valid promissory note, not being a promise for a fixed and certain amount, but for an amount subject to vary upon certain contingencies. ⁴⁸ Vide Story on Promissory Notes, sec. 20 ; Bayley on Bills, ch. 1, sec. 4, p. 11 (5th Edition). Story on Bills, sec. 42. 20 Pick. Rep., 132 .

But the paper was offered, to support the issues generally, and if admissible upon either of the issues, it was error to reject it entirely. Being a promise to pay a liquidated sum, after a period then passed, as a balance due for goods sold and delivered, it was prima fapie evidence under the second count, subject to the deducting referred to therein, upon proof of the happening of the loss or difficulties if any. It was"incumbent on the defendants to show what loss had occurred, to entitle them to the deductions stipulated in the agreement. It did not appear when the paper was offered that any such had occurred.

If such losses had appeared, it was no ground for rejecting the evidence, but entitled the defendants to an abatement pro tanto. We think the Court below erred in excluding the paper under these circumstances. The second exception arises as follows : The former testimony having been offered and rejected, the plaintiff was offered as a witness, and detailed all the particulars of a verbal contract entered into between himself and John Smith, of M., about one week prior to the 31st of May, 1864, in which it was agreed that Smith would buy the plaintiff’s interest in a crop growing on a farm of Jacob M. Kunkel, sown in the autumn of 1863, and to be cut during the harvest of 1864 ; that Smith was to discharge the duties of the plaintiff to his landlord, by cutting and securing one half for the benefit of Kunkel, and to have for himself the other half, for which he agreed to pay $840. In a day or two afterwards, Smith told the plaintiff that the defendant, Barrick, was partner with him in the purchase of the crop.

On the